Kelso v. Crilly

Mb. Justice Windks delivered the opinion of the court. We are of opinion that the exclusion by the court from the jury of the letter of Mr. Smith was error. The evidence (including this letter) tends to show that Mr. Smith was employed to settle appellee’s claim against appellant for rent of the premises in question. There is no claim for rent by appellee for any time prior to the 1st of May, 1891, and the rent claimed by Mr. Smith’s letter is from that date to April 30, 1892. If there was rent due from appellant to appellee for this' latter period, it must have been because the relation of landlord and tenant existed between them for that period. If such relation existed, then there could be no recovery for damages under the declaration in this case, by reason of the clause in the lease expiring April 30, 1891. The evidence is that appellee demanded rent at $100 per month, and none that he claimed $10 per day for holding over. Smith was employed to settle the claim, which the letter says was for a year’s rent. We think this evidence was competent for the jury to consider as bearing upon the question of whether appellee, after May 1, 1891, elected to hold appellant as his tenant. We also think that the evidence of the interview between appellant and appellee’s agent, which took place after May 1, 1891, tends to show that appellee had elected to hold appellant as his tenant, and should have been submitted to the jury. In Taylor on Landlord and Tenant (8th Ed.), Sec. 22, the author says: “Very slight acts on the part, of the landlord, or a short lapse of time, are sufficient to conclude his election and make the occupant his tenant.” This language is quoted with approval by the Supreme Court in Clinton Wire Cloth Co. v. Gardner, 99 Ill. 159, in which case the trial court submitted to the jury the question as to what was the intention of the parties regarding a new tenancy, as evidenced by their acts with reference to the holding over. In Griffin v. Knisely, 75 Ill. 411, it was held that where a tenant held over, after notice from the owner that if he did so he would be required to pay an increased rental, although he objected to the terms imposed by the owner, by holding over, he became a tenant for the period of such holding. So in the case at bar, if appellee had the power to make appellant his tenant by recognizing him as such and demanding rent from him, though at an increased rate, appellee should not be allowed, after such recognition, to hold appellant for damages under the covenant in his former lease. Appellee affirmed appellant’s tenancy by demanding rent. This was his right, at least, under the terms of the former lease. In any event we think this tends to show a waiver of his right to hold appellant as a trespasser and liable for $10 per day for the time which the latter held over. Appellant was willing to be a tenant, and by the holding over was bound, at appellee’s election, at least to the extent'of the former lease, whether he consented or not. Clinton, etc., Co. case, supra. Appellant, by remaining after the demand of the increased rental by appellee, could not be heard to say he was not a tenant at the increased rate demanded.' Griffin case, supra. We are of opinion that the questions as to whether appellee waived his right under the former lease to claim damages at $10 per day, and whether there was a new tenancy created under the terms of the former lease, changed only as to the rental, viz., $100 per month, should have been submitted to the jury, under proper instructions. For the errors in excluding the evidence above noted and directing a verdict for appellee, the judgment is reversed and the cause remanded.